1988 PLP 1724 (CLC)

And other consequential reliefs by way of injunction etc. In the application under Order VII, Rule 11, C.P.C. the defendant No.11 has prayed, that the plaint be rejected as it does not disclose the cause of action and further that the suit .is barred by law. It may be pointed, that some of the defendants are contesting the suit, whereas, some of ‑ the defendants support the case of the plaintiffs. On behalf of the contesting defendants M/s. Gharib Nawaz Daccawala, Kazim Hassan and Sami Ahmed, have addressed the Court in support of this application under Order VII, Rule 11, C.P.C. while Mr. Z.U. Ahmed for the plaintiffs has opposed the application. The main contentions of the contesting defendants are, that efficacious remedy is provided under the Rules and Bye‑Laws of Karachi Bar Association (hereinafter called KBA) to resolve any dispute over election and without having recourse to such remedy, the plaintiffs' suit would be barred under section 9, C.P.C., that the relief by way of negative declaration cannot be granted by the Court, that the plaintiff No.l having succeeded in the election cannot have any cause of action, that the plaintiffs Nos.2 to 4 have no cause of action with respect to the posts for which they did not contest, and that the plaintiffs have no legal character or any interest in the property for which they can seek declaration under section 42 of the Specific Relief Act. It is an admitted fact, that KBA is unregistered body and has not been registered under Legal Practitioners and Bar Councils Act, 1973. It is also an admitted fact, that the bye‑laws and rules of the KBA are not framed under any statute and as such have no statutory sanction. However, the KBA as an institution is recognized by the Government by the High Court, by the Advocate community, and by the public‑at‑large and its rules and bye‑laws are duly framed by the general body of KBA. Admittedly, this institution has got a long standing and election of its various office‑bearers and members of Managing Committee is regularly held every year. Bye‑law 11 of the bye‑laws of the KBA provides "All the questions relating to the election shall be decided by the President whose decision shall be final." As already pointed these rules and by‑law are not framed under any statute and have no force of law. As such any provision of these rules and bye‑laws cannot bar the filing of this suit under section 9, C.P.C. Reliance was placed on Clause (f) of section 56 of the Specific Relief Act, which provides, that an injunction cannot be granted her equally efficacious relief can certainly be obtained by any other mode of proceedings." In the present suit relief is being sought against the President, other office‑bearers and members of the Managing Committee of the KBA. No doubt, certain rules and bye‑laws provide for remedies that can be obtained from the President and the Managing Committee, but the said office‑bearers are themselves parties to the suit against whom relief is claimed. It will be only wastage of g time and an exercise in futility if the plaintiffs approach them for remedy under the relevant rules and bye‑laws. As such the remedies provided thereunder cannot be considered as efficacious remedy to bar the issuance of injunction under section 56(f) of the Specific Relief Act. However, the main stress was laid by the learned counsel for the defendants on the ground, that the plaintiffs have no cause of action and that they have no legal character for which they can seek declaration . The expression legal character or status used in section 42 of the Specific Relief Act was considered in case of Burma Eastern Limited v. Burma Eastern Employees Union P L D 1967 Dacca 190, a Division Bench of the erstwhile High Court of East Pakistan observed as under:‑

"The expression 'legal character' or 'status' denotes a character or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a 'status' or 'character' conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the 'status' with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority." In the same case it was further observed, that a suit for mere declaration aliunde is not permissible under the law except in the circumstances mentioned in section 42 of the Specific Relief Act. Reliance is also placed on P L D 1959 Dacca 5 wherein a D . B. Of the said Court had held, that section 42 was exhaustive and does not sanction any and every declaration, but a declaration that plaintiff is entitled to a specific legal character or right to property. In the said case the plaintiffs had filed suit for declaration that after the extended term of the Municipality had expired the defendants were no longer Municipal Commissioners and that all the acts and transactions made M. them in the name of Municipality after said date were void, illegal and ultra vires. It was held, that as the declaration sought by the plaintiffs was for declaration as to legal character of persons other than themselves they were not entitled to such relief. In the case of Abdvr Rehman Mobashir and 3 others v. Amir Ali Shah Bokhari and 4 others P L D 1978 Lah. 113, the plaintiff had filed suit for declaration, that the defendants having been declared as non‑Muslims had no right to call their place of worship by name of mosque or to perform prayers in manner provided by Holy Quran and Sunnah or to call persons to payer by proclaiming Azan. It was held by a Division Bench of Lahore High Court, that such a suit was a converse nature as compared to one falling under section 42 and the pleas raised or relief claimed in such suit cannot fall under section

42. It was further held that no declaration can be issued outside the provisions of section 42 and Courts' power to make a declaratory decree is limited to instances mentioned in the section. It was further observed as under:‑

"Section 42 of the Specific Relief Act, 1877 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property, but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one, which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vindication of the plaintiff's title to status and property." On the question as to whether negative declaration can be granted it was observed by the learned Judges, that the negative declaration can be given but such declaration must also be one affecting some threatened injuries or infringement of the plaintiff's rights. This type of negative declaration can be granted on the principles, that what can be done directly can also be justified if done indirectly. Phrase "legal character" has also been discussed by the learned Single Judge of this Court in case of Alvi Sors Limited v. Government of East Pakistan and others P L D 1978 Kar.

222. It has been observed as under:‑

"The phrase 'legal character' has been used, in the sense of 'status'; which is constituted by the attributes which the law attaches to a person in his individual and personal capacity, and which, according to Holland, is referable to such conditions as (1) sex, (2) minority, (3) patria potestas and manus, (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death, (12) illegitimacy, (13) heresy, (14) foreign nationality and (15) hostile nationality. According to Salmond the term 'status' is usually confined to personal legal condition or, personal capacities and incapacities, or compulsory as opposed to conventional personal conditions. In this sense, the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities or legal conditions imposed upon a person law without his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave declaration that a plaintiff has not committed breach of the terms Of a contract is a declaration neither with regard to any legal character nor any right to or in any property." Reliance is also placed on the case of Muhammad Farooq Khan v. Sulaiman A.G. Panjwani and 2 others P L D 1977 Kar. 88, wherein :t is observed, that where declaration sought was neither with respect to plaintiff's legal character in sense of legal status nor with regard to any right of property such declaration cannot be granted. Mr. Z.U. Ahmed, learned counsel for the plaintiffs has relied upon A I R 1967 SC 436, wherein it is held, that section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such decree independently of the requirement of the section. Similar view was also taken in the case reported in A I R 1975 SC 1810, wherein it was held as under:‑

"Section 42 merely gives statutory recognition to a well -reconginzed type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Court to give declarations of right in appropriate cases falling outside section

42. The circumstances in which a declaratory decree under section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by another's legal character or who has no interest in another's property could not get a declaration under section 42 with reference to the legal character or the property involved." However, at this stage, it is not necessary to go into the question whether section 42 is exhaustive or , whether any relief can be given outside its scope. In my opinion for the foregoing reasons it cannot be said at this stage, that the case of the plaintiffs falls outside the ambit of section

42. It may be pointed, that in none of these reported cases, the plaint was rejected under Order VII, Rule 11, C.P.C. on the ground, that the plaintiffs were not entitled to such relief under section 42 of the Act. The facts of each case differ and the Court has to decide each case on its own merits, keeping the facts of the individual case in view. In the instant case the present application is for rejection of the plaint under Order VII, Rule 11, C.P.C. It is settled law, that while considering the question of cause of action for rejection of the plaint under Order VII, Rule 11, C.P.C. the Court has to Apply its mind to the facts given in the plaint and not to other matters and it has to be presumed, that any allegation made in the plaint was true Reference may be made to P L D 1976 Karachi

21. In the instant case the main question that is to be determined is, whether prima facie the plaintiffs have any legal character, which is being denied by the defendants for which they can seek declaration, and consequential relief. The legal character as used in section 42 is used in sense of status. One of the attributes of the status is the profession of the persons concerned. In the instant case the plaintiffs are advocates by profession and in their professional capacity, they are members of the Karachi Bar Association. Admittedly, only such persons can be enroled as member of KBA, who carry on the profession of advocacy. The learned counsel for the plaintiffs has referred to para 2 of the Memorandum of the rules and bye‑laws of the KBA, which deals with the object of the Association and reads as under:‑ "The objects of the Association are to consider, safeguard and promote the interests of the legal profession, to watch and assist the progress of legislation, to make proper representation to the Bar Council, the High Court of West Pakistan and Provincial and Central Governments, to maintain and develop high professional tone and to prevent un professional practices, to safeguard the rights and interests of the members of the Karachi Bar Association in particular and to do all such other things as may be necessary to promote further and secure the aforesaid objects." It is contended by the plaintiffs, that the way in which the election has been conducted, it was in violation of the rules and by malpractices some of the defendants have got themselves elected as office‑bearers of the KBA, which is against the interest of the members of the KBA, and as members of KBA in their professional capacity the plaintiffs have right to safeguard their interests as well as interest of the other members of the KBA and seek relief for safeguarding such interest, by way of declaration as well as injunction. It is contended in the plaint, that some of the defendants by the alleged malpractices have managed to occupy and assume offices as President, Vice‑President, Honrary Secretary, Members of the Managing Committee etc. of the KBA unjustly and without right which in fact amounts to usurpation of the said offices. Reliance is placed on P L D 1969 Karachi 692 Abbas Khalili and others v. Saifuddin Valika and others. In the said case, there was dispute between the parties over the control and management of the Karachi Hockey Association, which was unregistered body. Mr. Khalili was the President of the said Association. However, in a meeting conveyed by the Council of the Hockey Association, a resolution was passed to the effect that the Council had lost confidence in Mr. Khalili, and therefore, removed him and in his place Mr. Saifuddin Valika was elected as President. Mr. Anwar Choudhry, one of the members of Association, filed a suit for declaration and injunction in the name of Association; that Mr. Valika had no right to interfere with the management of the Association. Objection was raised in the case, that because Anwar Choudhry had no legal character within the meaning of section 42, to question Mr. Khalili's removal as the President of the Association, therefore, the suit was barred under section 42 of the Specific Relief Act. It was held by the learned Single Judge of this Court, that the suit was filed not only to challenge the illegal removal of Mr. Khalili as President, but challenged the illegal removal of the Management of Association by the respondent, and therefore, plaintiff had right to challenge the illegal usurpation, especially when the consequence of such usurpation by the respondent has been Anwar Choudhry's own removal from the membership from the Council of Association. It is contended by the learned counsel, that by the alleged malpractices, not only some of the defendants have usurped the offices of the KBA, but the alleged illegalities in the election has resulted in depriving plaintiffs Nos.2 to 4, and some of the defendants, who were contesting the election, but were defeated, from their right of getting fair chance to get elected. Reliance is also placed on AIR 1926, Calcutta 1070, wherein it has been held by a D . B . of the said Court, that the declaration can be granted to the plaintiff if the election of opposite‑party is illegal and void. It is not disputed, that KBA is the representative institution of the advocates practising at Karachi. The plaintiffs admittedly by profession are advocates practising at Karachi. In their professional capacity they are members of this institution. There appears to be sufficient force in the contentions of the plaintiffs, that as members of the KBA, they have got the right to get themselves or any person of their choice elected as the office‑bearers of KBA in fair election held in accordance with the rules and regulations framed by the KBA, and also to see, that affairs and management of the KBA are conducted in accordance with the rules and regulations and objects of the KBA in the interest of the members of the KBA and legal profession. All these rights are acquired by them, by virtue of their profession as advocates, practising at Karachi. Profession of an advocate is a status or character, which in fact, is conferred by law upon the individual or groups of individuals, who carry on legal practice. It, therefore, cannot be said that the rights that the advocate acquired in his professional capacity, do not constitute legal character of status within the meaning of section 42 of the Specific Relief Act or that he cannot seek declaration in respect of such rights. I do not need to go in the merits of the case at this stage. In my opinion, prima facie from the averments‑in the plaint, it cannot be' said that the plaintiffs have no cause of action or, that they have no legal character or status for which they seek declaration or that the suit is barred by any law. As such. the application under Order VII, Rule 11, C.P.C. is dismissed. The application was dismissed by a short order dated 9‑9‑1987. The above are the reasons in support of the said order. H.B.T./420/K Application dismissed.